Al-Sarraj (l) and the High Representative for Foreign Affairs and Security Policy Federica Mogherini (r) attend a meeting at the EEAS in Brussels on Tuesday (photo: AFP)

The Libyan House of Representatives, in the last week of November, passed two amendments to the August 2011 Constitutional Declaration, one to fortify the constitutional referendum law against legal challenge and the other to reshape the Presidency Council of the Government of National Accord that was formed in accordance with the Libyan National Agreement signed by Libyan factions in Skhirat, Morocco, in December 2015. Until now, the House of Representatives has refused to approve the Government of National Accord and, indeed, the Skhirat Agreement. The amendments will throw more spanners into the UN plan for Libya and, most immediately, the plan for a nationwide dialogue conference that UN Special Representative to Libya Ghassan Salame hopes to organise in January 2019.

The legislation, announced at the end of the House of Representatives’ session on Monday, 26 November, marks the eleventh time the 2011 Constitutional Declaration has been amended. On the tenth time, last summer, lawmakers amended Paragraph 12 of Article 30 in order to create three electoral districts: Tripolitania, Cyrenaica and Fezzan. Prior to this Libya had been treated as a single voting district. They also amended the conditions for adopting the constitutional bill after the referendum.

The eleventh round introduced two amendments. The first changes the articles pertaining to the executive authority and provides for a Presidency Council consisting of a president and two vice-presidents. The three-member council will represent the three abovementioned regions. The second article stated that this amendment would go into effect as of the date it was adopted. However, the amendments did not grant any legitimacy to the bodies that existed prior to the amendment thereby implicitly eliminating them.

Realising the problem, House of Representatives Speaker Aguila Saleh announced on Saturday that the amendment did not abolish the Tripoli-based High Council of State and only affected executive bodies. The latter was an allusion to the current nine-member Presidency Council headed by Fayez Al-Sarraj. Saleh called on the House of Representatives and High Council of State national dialogue committees to conclude procedures to create the new, trimmer, three-member Presidency Council in accordance with the latest amendment to the Constitutional Declaration.

“The second article of the eleventh constitutional amendment pertains to the executive authority which had not been approved by the legislative authority. Unifying the executive authority is an important and urgent demand in order to end the institutional division in the country,” Saleh said. He also urged rapid steps in order to arrange for presidential and parliamentary elections.

The Tobruk-based House of Representatives has not ratified the Skhirat accord or amended the Constitution Declaration to incorporate its articles, thereby supporting the existing Government of National Accord. It merely amended the constitutional provisions pertaining to the executive branch on the basis of some principles it had agreed on with the Tripoli-based High Council of State. House of Representatives members opposed to the Saleh camp told Al-Ahram Weekly that the latest amendment is “selective” and has “aims that we are not aware of”. They stressed the need for a comprehensive deal in order to end the political impasse that has dragged on for several years.

Salame, head of the UN Special Mission in Libya (UNSMIL), plans to arrange for a national convention attended by representatives of all political, social, security components of Libyan society in January 2019. He had originally planned for that convention, one of the three stages of the UN-sponsored plan for Libya, to take place in 2018. However, it had to be deferred after intensive mediating efforts last year failed to bridge differences between the House of Representatives and High Council of State over how to amend the Libyan Political Accord signed in Skhirat.

The latest action on the part of the House of Representatives has been seen as a last-ditch political manoeuvre to circumvent the UN plan. More immediately, the bid to restructure the Presidency Council of the Government of National Accord (GNA) comes just as the internationally recognised GNA, in response to intensive pressure from Western powers, began to apply a package of economic reforms as well as new security arrangements for the capital. Some fear that the restructuring will jeopardise these measures and have an overall destabilising effect.

On Thursday, last week, the first Deputy Speaker of the House of Representatives Fawzi Nuweiri, submitted the constitutional referendum law to the Chairman of the Supreme Electoral Commission Emad Al-Sayeh. The commission is now expected to prepare for the referendum, the first step towards which will be to initiate voter registration processes throughout the country in the hope of ensuring the largest possible turnout for the vote on the new constitution.

However, the draft constitution, although approved in July 2017 by the Constituent Assembly responsible for drafting it, still faces hurdles. In the east, in particular, some main players harbour strong objections to parts of the constitution, especially those political forces that hope to return to the old federal system. As for the eastern strongman Field Marshal Khalifa Hafter, commander of the Libyan National Army, his main objection to the “flawed” draft constitution is that it prohibits Libyans with dual nationality from public office.

Others have voiced objections to the referendum law. Some oppose the division of the country into three electoral districts on the grounds that it could serve as a mechanism for an “obstructive veto”. Under the referendum law, in order for the constitution to pass it must receive the approval of a simple majority (50+1) in each region as well a two-thirds majority of the vote nationwide.

It is also likely that technical difficulties and controversies will arise when it comes to delineating the boundaries between the three voting regions (Tripolitania, Cyrenaica and Fezzan), abolished in the 1960s at the end of the monarchical era. Demographic questions are certain to come to the fore. Many of the inhabitants from these regions have relocated in the decades since, and on top of this there is the ongoing and pressing problem of the thousands of people displaced by warfare and violence.

The Weekly has learned from Libyan sources that Stephanie Williams, the UN deputy special representative for political affairs in Libya, has urged a number of Libyan lawyers and rights activists to challenge the constitutional referendum law in court. Sources say that the purpose of the legal action is to avert the obstruction of the envisioned Libyan national convention. But also, there have been many demands to subject the draft constitution to review. Although the Constitutional Declaration states that legislative authorities must submit their observations on the draft constitution to the Constituent Assembly within a month after the draft was submitted to them for review, it has now been 16 months since the Constituent Assembly announced its approval of the draft constitution which is now supposed to be put to a plebiscite.

In addition to the foregoing problems, there is also the question of the security situation. The situation in the capital and its vicinity is still tense, in spite of attempts on the part of UNSMIL to bolster the ceasefire that was reached between battling militia forces in Tripoli in September. To the east, the crime rate is rising, and armed robberies in particular are growing more frequent, while to the south the situation is fraught due to the activities of Islamic State-affiliated groups, and armed groups from Sudan, Chad and Niger, competing over control over parts of the south and smuggling routes there.